Span v. Nichols

• Decision Date: 12 May 2020
• Docket Number: NO. 2018-CA-01332-COA,2018-CA-01332-COA
• Citation: 306 So.3d 781
• Parties: Brenda SPAN, AS Guardian and NEXT FRIEND OF Antheijah SPAN, a Minor, Appellant v. Dr. Brantley P. NICHOLS, Appellee
• Court: Mississippi Court of Appeals

306 So.3d 781

Brenda SPAN, AS Guardian and NEXT FRIEND OF Antheijah SPAN, a Minor, Appellant

v.Dr. Brantley P. NICHOLS, Appellee

NO. 2018-CA-01332-COA

Court of Appeals of Mississippi.

May 12, 2020

Rehearing Denied August 25, 2020

ATTORNEY FOR APPELLANT: ELLIS TURNAGE

ATTORNEYS FOR APPELLEE: JOHN A. BANAHAN, MICHAEL RILEY MOORE, Pascagoula

EN BANC.

J. WILSON, P.J., FOR THE COURT:

¶1. In this medical malpractice case, the circuit court ruled that the statute of limitations expired after the plaintiff failed to timely serve process on the defendant. On appeal, the plaintiff argues that the statute of limitations was tolled until the complaint was filed because the claim was filed on behalf of her minor daughter. The plaintiff also argues that the circuit court erred by preventing her from cross-examining witnesses regarding her failed attempt at service. We hold that the minors savings provisions of the medical malpractice statute are controlling in this case and did not toll the limitations period. In addition, the circuit court did not prohibit the plaintiff from cross-examining anyone or commit any other abuse of discretion. Therefore, we affirm the judgment of the circuit court granting summary judgment in favor of the defendant.

FACTS AND PROCEDURAL HISTORY

¶2. On June 18, 2013, Antheijah Span, then fifteen years old, had her wisdom teeth removed by Dr. Brantley Nichols at the North Sunflower Medical Center in Ruleville. Nichols primarily practiced in Hattiesburg but also saw patients once a week in Ruleville.

¶3. On July 31, 2015, Antheijah's mother, Brenda Span, filed suit on behalf of Antheijah against Nichols in the Sunflower County Circuit Court. Span alleged that Antheijah experienced complications and suffered pain and permanent injuries because Nichols breached the standard of care when he extracted Antheijah's wisdom teeth. Span also alleged that she had served Nichols with pre-suit notice pursuant to Mississippi Code Annotated section 15-1-36(15) (Rev. 2012).

¶4. On February 19, 2016, Span filed a proof of service/sheriff's return. The return shows that the summons was stamped "received" by the Forrest County Sheriff's Office on November 23, 2015, i.e., 115 days after the complaint was filed. The summons is directed to Nichols at the address of his Hattiesburg clinic. The return appears to state that a deputy sheriff "personally delivered copies of the summons and complaint" to Nichols on November 24, 2015. However, the handwritten month is not entirely clear, and the unidentified deputy's signature is illegible.

¶5. On February 19, 2016, Span also applied to the clerk for an entry of default based on Nichols's failure to answer the complaint. Span also filed a motion for the court to determine damages. The clerk entered a default on the docket, and on April 12, 2016, the court entered an order finding Nichols liable based on his failure to answer the complaint, with a hearing to be held later to determine damages.

¶6. On May 5, 2016, Nichols filed a motion to set aside the entry of default and the order adjudicating liability. Nichols alleged that the default and order should be set aside because he was never served with pre-suit notice pursuant to subsection 15-1-36(15), supra , nor was he served with the summons and complaint. Nichols also argued that Span's claim should be dismissed because she failed to file a certificate of expert consultation, as required by Mississippi Code Annotated section 11-1-58 (Rev. 2014).¹ In support, Nichols attached his affidavit and the affidavit of the administrative assistant for the North Sunflower Medical Center.

¶7. In his affidavit, Nichols stated that he was a resident of Lamar County, that his primary dental practice was in Hattiesburg in Forrest County, and that he also treated patients in Ruleville in Sunflower County one day a week. Nichols averred that he first became aware of Span's lawsuit on April 29, 2016, when his clinic received a copy of the circuit court's order adjudicating liability. Nichols denied that he ever received pre-suit notice from Span. Nichols also stated that he had checked his schedule, and he was never in Forrest County on November 24, 2015, the date he was allegedly served with process there. Nichols stated that he worked that entire day in Ruleville, saw approximately twenty patients at the North Sunflower Medical Center, and returned to his home after business hours. According to Nichols, he "was not present in the office in Hattiesburg or anywhere else in Forrest County to have received the Summons and Complaint on November 24, 2015."

¶8. Sandra Britt, the administrative assistant at the North Sunflower Medical Center, confirmed in her affidavit that the Center's records show that Nichols had twenty surgical patients scheduled in Ruleville on November 24, 2015, that he saw his first patient at 6 a.m., and that he completed his last surgical case at approximately 3:45 p.m.

¶9. Span filed a response to Nichols's motion in which she generally "denied and disputed" all of Nichols's arguments, including his denial that he was personally served with a copy of the summons and complaint. Span also attached an affidavit from her attorney's legal assistant attesting that she sent Nichols pre-suit notice by certified mail on May 26, 2015. A return receipt filed with the affidavit indicates that certified mail was received by someone at Nichols's Hattiesburg clinic on May 28, 2015. Finally, Span attached an expert report in support of her claim. It does not appear that the expert reviewed any of Antheijah's medical records prior to October 2015, and the report is dated November 20, 2015. However, Span argued that Nichols waived the statutory expert consultation requirement by failing to file an answer to the complaint.

¶10. The circuit court held a hearing on Nichols's motion on October 25, 2016. Neither side presented any witnesses or additional evidence at the hearing. Span's attorney asked the court "to keep the record open" for Span to take the depositions of Nichols and Britt. He stated that he had not attempted to depose them because he "suspected that [Nichols] would be [at the hearing] to testify ... in person." Span also made an ore tenus motion to strike the affidavits of Nichols and Britt because they had not been subject to cross-examination. The court did not rule on Span's ore tenus motion. At the conclusion of the hearing, the court took Nichols's motion under advisement.

¶11. On December 12, 2016, the court granted Nichols's motion to set aside the entry of default and the court's prior order adjudicating liability. In its order, the court "accept[ed] Dr. Nichols's claim that he was not properly served." The court also found that Nichols had multiple meritorious and colorable defenses.

¶12. On May 22, 2017, Span obtained a new summons from the clerk. A process server personally served Nichols in Sunflower County on June 20, 2017. However, at no point did Span file a motion for additional time to serve Nichols. See M.R.C.P. 4(h).

¶13. On June 25, 2017, Nichols filed a motion for summary judgment. In support of his motion, Nichols again submitted his affidavit and Britt's affidavit. Nichols argued that the claim was barred by the applicable two-year statute of limitations. See Miss. Code Ann. § 15-1-36(2). For purposes of the motion, Nichols did not dispute Span's claim that she served him with pre-suit notice. Nichols argued that Span's claim accrued on June 18, 2013, and even allowing an additional sixty days for service of pre-suit notice in May 2015, see id. § 15-1-36(15), the statute of limitations on the claim was set to expire on August 17, 2015. Span filed her complaint on July 31, 2015, with seventeen days left on the statute. The filing of the complaint tolled the statute of limitations for 120 days. see Holmes v. Coast Transit Auth. , 815 So. 2d 1183, 1185 (¶7) (Miss. 2002). However, Nichols argued that because Span failed to serve him with process within 120 days, the statute automatically began to run again on November 28, 2015, see id. , and expired seventeen days later on December 15, 2015. Thus, Nichols argued, the statute expired long before Span finally served him in June 2017.

¶14. Span filed a response to Nichols's motion in which she argued that the filing of the complaint continued to toll the statute of limitations despite any failure of service of process. She argued that the statute would not begin to run again unless the case was actually dismissed. Span also asserted that Nichols waived his statute of limitations defense by making a "general appearance" in support of his motion to set aside the entry of default and the order adjudicating liability.

¶15. The court held a hearing on Nichols's motion for summary judgment. At the hearing, counsel simply reiterated their respective legal arguments. Span's attorney argued that the filing of the complaint continued to toll the statute of limitations "[i]n the absence of a dismissal," which had not occurred. Span did not contest the court's prior finding that she failed to serve process in November 2015. Nor did she raise any evidentiary objections to the affidavits filed by Nichols in support of his motion.

¶16. On September 19, 2017, the circuit court granted Nichols's motion for summary judgment. The court stated that under Mississippi Rule of Civil Procedure 4(h), Span originally had until November 28, 2015, to serve process. The court reasoned that the sheriff's return dated November 24, 2015, gave Span "reason to believe" that she had served Nichols. The court then held:

[T]he time for service of process was tolled from the date [Span] had reason to believe that service had been perfected, November 24, 2015, until the date the Court's order setting aside the default was filed on December 12, 2016. That means [Span] had four days after the Court's Order to serve [Nichols]. However, [Span] waited approximately six months to serve [Nichols]. At no time did [Span] seek

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